Gema fees belong to the composers
The Berlin Court of Appeal has strengthened the rights of musicians/artists in appeal proceedings: Gema (the German equivalent of Suisa) is not entitled to reduce the remuneration shares to which the artists are entitled as authors by so-called publisher shares from 2010 onwards.
The background to the legal dispute is the question of how income from rights of use for copyrights should be distributed. In its decision, the 24th Senate of the Court of Appeal applied and continued the case law of the Federal Court of Justice to the distribution for the use of copyrights. According to this, Gema may only distribute funds to those rightholders who have effectively transferred their rights.
If the authors had first transferred their rights to Gema on the basis of contractual agreements, the publishers could not derive any claims from the artists' copyrights. This is because publishers are not entitled to their own ancillary copyright. Accordingly, they could not claim a share of the revenue from usage rights.
Something different could apply if the authors had made specific payment instructions in favor of the publishers or had (at least partially) assigned their claims for remuneration against Gema to the publishers. However, such special agreements in favour of the publishers are neither typically recognizable nor identifiable in the present case of the plaintiff artists.
In today's decision, the Court of Appeal also ordered Gema to provide the plaintiffs with information on the corresponding publisher's shares and to render an account thereof. The question of whether the artists are also entitled to payment of further remuneration on the basis of the information to be provided has not yet been decided today. First, the information must be awaited, so that only a partial judgment was pronounced.
The written reasons for the judgment are not yet available. An appeal to the Federal Supreme Court has not been admitted; an appeal to the Federal Supreme Court against the non-admission of the appeal would probably not be admissible due to the lack of the required amount of appeal.
